Koperda v. Town of Whitestown

• Decision Date: 02 February 1996
• Docket Number: No. 1,1
• Citation: 637 N.Y.S.2d 899,224 A.D.2d 944
• Parties: Walter J. KOPERDA and Pamela Koperda, Appellants, v. TOWN OF WHITESTOWN, et al., Defendants, Village of Whitesboro and Whitesboro Police Department, Respondents. (Appeal)
• Court: New York Supreme Court — Appellate Division

Page 899

637 N.Y.S.2d 899

224 A.D.2d 944

Walter J. KOPERDA and Pamela Koperda, Appellants, v. TOWN OF WHITESTOWN, et al., Defendants Village of Whitesboro and Whitesboro Police Department Respondents. (Appeal No. 1.)

Supreme Court, Appellate Division,

Fourth Department.

Feb. 2, 1996.

Appeal from Judgment of Supreme Court, Oneida County; Grow, Judge.

Nottingham Engel Gordon and Kerr, by Richard Engel, Syracuse, for Appellants.

Petrone and Petrone, by James Goodemann, Utica, for Respondents Whitesboro.

Before DENMAN, P.J., and PINE, WESLEY, BALIO and BOEHM, JJ.

MEMORANDUM:

In this multi-party action, plaintiffs appeal from four judgments and two orders entered upon a verdict of no cause for action against any defendant. Plaintiffs contend that Supreme Court abused its discretion in denying their request for additional peremptory challenges; that bifurcation of the issues of liability and damages was an abuse of discretion; that the court erred in failing to instruct the jury in accordance with plaintiffs' requests; that the verdict is against the weight of the evidence; that the court improperly allowed notetaking by the jury foreperson; that the verdict sheet was confusing and erroneous; that the negligence of the municipal defendants was a concurrent cause of the accident; that the court erred in excluding a demonstrative exhibit offered by plaintiffs; and that the court erred in refusing to include certain exhibits in the record on appeal.

The court did not err in limiting each party to three peremptory challenges (see, CPLR 4109). The court need not equalize the number of peremptory challenges between plaintiff and multiple defendants unless the multiple defendants are so united in interest that they may be considered a single party (see, Heiston v. Taylor, 281 App.Div. 800, 119 N.Y.S.2d 452; Cadwalader, Wickersham & Taft v. Associated Bldrs. & Owners of Greater N.Y., 125 Misc.2d 827, 829-830, 480 N.Y.S.2d 415). Here, defendants were not united in interest.

The court did not abuse its discretion in bifurcating the trial. The issues of liability and damages were not so intertwined that the court was precluded from trying the issue of liability first (see, Polimeni v. Bubka, 161 A.D.2d 568, 569, 555 N.Y.S.2d 145; 22 NYCRR 202.42[a], [b]; cf., Hampton Hgts. Dev. Corp. v. Board of Water Supply, 140 A.D.2d 959, 531 N.Y.S.2d 512).

The court did not err in rejecting plaintiffs' requests to charge the duty of a municipality with respect to its roads, the "danger invites rescue" doctrine, or the liability of a participant in a joint enterprise. The court's failure to grant plaintiffs' other request to charge, that a violation of Vehicle and Traffic Law § 1163(e) constitutes negligence per se, was rendered harmless by the lack of proof of causation. The evidence establishes that Wolkowicz saw the disabled vehicles 580 feet away when she came over a hill, but was unable to stop her vehicle because of the ice. In any event, the court adequately informed the jury that O'Leary and Schaeffer may have had a duty to use their emergency flashers in the exercise of reasonable care.

The verdict is not against the weight of the evidence (see, Kuncio v. Millard Fillmore Hosp., 117 A.D.2d 975, 976, 499 N.Y.S.2d 525, lv. denied 68 N.Y.2d 608, 506 N.Y.S.2d 1033, 498 N.E.2d 435; Nicastro v. Park, 113 A.D.2d 129, 134, 495 N.Y.S.2d 184). A fair interpretation of the evidence supports the jury's...